What is industrial action?

There is no precise definition of industrial action in employment legislation. Put simply, it is either a strike, 'any concerted stoppage of work' (Trade Union and Labour Relations (Consolidation) Act 1992, section 246) or industrial action other than a strike.

This includes 'working to rule', refusing to do certain duties and not co-operating with the employer: in schools and colleges, this could mean refusing to provide cover, or refusing to attend out-of-hours meetings.

It could also include refusing to teach or supervise a particular pupil or student - this is, in practice, the most common issue leading to industrial action.

To be lawful, industrial action must:

be a dispute between workers and their employer relating to terms and conditions of employment, sharing out work, discipline, or union issues

not involve 'secondary action' or action taken by the employees of an employer who is not involved in the dispute

not involve unlawful picketing

follow a secret ballot, for which there is a legally-required procedure and timescale.

ATL's approach

ATL always tries to settle disputes through resolution rather than confrontation, and regards any form of industrial action to be a last resort.

While industrial action is taking place, it is important to concentrate on sorting out the dispute and assessing how likely the action (with its risks) is to achieve the desired outcome. Industrial action can be useful for achieving an aim, but should not be seen as an aim in itself.

Advice and support

One of ATL's basic principles is to advise, not instruct, its members. So ATL may authorise and encourage members to take part in industrial action, but it will not instruct them to do so.

You may be unwilling to take industrial action, either because of personal beliefs or because you are against the particular cause in question. Other members should be ready to respect this.

If you take part in industrial action which ATL approves and authorises in line with the procedure set out in ATL guidance (official and lawful industrial action), ATL will give you full professional support.

Balloting

ATL's executive committee is responsible for approving the ballot and the decision about authorising industrial action - any school, college or branch considering a ballot must approach a local executive member.

The timing, content and administration of the ballot is normally overseen by legal staff at ATL's London office. The decision to authorise action is then made by the president, one of the national officers or the general secretary in consultation with local officials and representatives and legal staff.

The employer must receive formal notice, giving them at least seven days' notice of the opening of the ballot and giving information about who will be asked to vote (members no longer have to be named individually).

By law, ATL needs to know who is eligible to vote (and later take part in any action) so it relies on its central computer record of members. It is very important that this record is updated before the start of the balloting process.

Every member who ATL believes will be invited to take part in any later industrial action is entitled to vote in the ballot. Even if there is a very small number of members (or perhaps just one) in an institution where ATL is considering industrial action, a formal ballot will still normally be needed.

Announcing the result

As soon as is reasonably practicable, ATL will write to those who were entitled to vote and to the employer, setting out:

the number of votes cast in the ballot

the number of people who voted 'yes' to the question or questions

the number of individuals who voted 'no' to the question or questions, and

the number of spoiled ballot papers, if any.

For school and college ballots, ATL will normally send this notice to the school or college representative to advise their ATL colleagues. ATL will send the letter for the management side to the formal employer of the staff, and will normally send a copy to the headteacher or principal.

If the dispute is branch-wide, or has regional or national significance, members may learn the outcome through the media before they receive official notice. In these cases, ATL will meet its responsibility to tell members the result, normally through workplace, branch or national notices or newsletters as appropriate.

Authorising industrial action

If the timescale allows, ATL's full executive committee will decide whether to authorise official industrial action. If this is not realistic (as is often the case), ATL will pass authority to authorise action to each of the senior national officers (the president, the senior vice-president and the junior vice-president) and the general secretary, in that order.

By law, only a simple majority of those voting need to be in favour of industrial action for the union to authorise it. However, ATL's constitution states that industrial action will be declared to be official if at least 60 per cent of those voting in a lawfully organised ballot support it.

If a majority of less than 60 per cent support industrial action, the executive committee (and those officers who have the power to authorise industrial action) can decide whether to approve the action.

Notifying the employer

Once industrial action has been supported in the ballot and ATL has authorised it, the employer must be given at least seven days' notice that it is about to begin. The notice must say whether the action will be continuous (for example, an indefinite strike or a continuing refusal to teach a pupil) or discontinuous (for example, a series of one-day strikes).

In the case of discontinuous action, the union must give at least seven days' notice of each occasion on which the industrial action will be taken. The notice must also give the employer information about which employees will take part (members no longer have to be identified by name).

If ATL authorises the action soon after the result of the ballot, the letter informing the employer of the result can also tell them when the action will start. ATL will normally send a copy of the letter to the headteacher or principal involved.

Taking industrial action

By law (unless there are other legal proceedings or the employer agrees an extension), the industrial action must start within four weeks of the date of the ballot (that is, when the ballot closes). In disputes that arise towards the end of term, care must be taken when considering the timing of the ballot to make sure that the four-week rule can be followed, taking account of school holidays.

Once the industrial action has started within the four-week limit, it can continue indefinitely. There is no formal requirement to ballot the members again after a certain length of time. However, if the action is suspended by the union (for example, if more negotiations are needed) the employer must be given seven days' notice of the action starting again, unless they have formally agreed to the suspension.

Employers facing industrial action by staff can respond with a number of penalties, ranging from deductions of salary through to dismissal in the most serious cases.

The most commonly applied penalty for industrial action is partial or total deductions from pay. By law, wages and salaries are worked out by the day so for a one-day strike, the employer can withhold a day's salary.

For teachers working in maintained schools, the National Conditions of Service (the Burgundy Book) says that any deductions of a day's salary must be worked out as of the annual figure. For other staff, the proper figure is not clearly set out.

If the industrial action involves an employee refusing to do certain duties rather than striking, the employer is entitled to make a partial deduction from his or her pay. No figure is set out for this calculation.

Salary deductions have a significant effect on pension benefits. If an employee is absent for a day because he or she is taking strike action, he or she will normally lose that day's pensionable service.

Dismissal for official action

You are unlikely to be 'fairly' dismissed for taking industrial action following the introduction of 'protected industrial action' in the Employment Relations Act 1999. This allows employees to claim automatic unfair dismissal if they are taking part in official and lawful industrial action and are dismissed:

during the first eight weeks of the action

after the first eight weeks, but where they had stopped taking part in the action during that period

after the first eight weeks, but where the employer had not taken reasonable steps to sort out the dispute.

It will be relevant if the employer has followed any established procedure, has offered (or accepted an offer of) negotiations, or has unreasonably refused a request for mediation. The Employment Tribunal will not be expected to investigate the dispute itself.

Dismissal for unofficial action

Employment legislation does not protect staff who are involved in unofficial industrial action (sometimes referred to as 'wildcat' strikes or action) against dismissal. Any action that does not follow the procedures outlined above would be considered unofficial.

This means that if an employer responds to unofficial action by dismissing one, some or all of those involved, the employees have no right to claim unfair dismissal, even though they may well have been dismissed without warnings, hearings or any notice.